The Prehistory of Porn Prosecution

How "licentious Gotham" gave rise to today's obscenity laws

Licentious Gotham: Erotic Publishing and Its Prosecution in Nineteenth-Century New York, by Donna Dennis, Cambridge: Harvard University Press, 408 pages, $29.95

When even the most computer-challenged preteen can easily Google an infinite number of very dirty pictures, it is almost quaint to ponder antebellum porn, which was heavy on suggestion and implication when it wasn't masquerading as medical advice. One representative publication, The Secret Habits of the Female Sex (1848), came translated "from the French of Jean Dubois, M.D." (ooh la la!) and promised readers "of all classes" clinically graphic details of what happened to young girls who became "the premature victims of a pernicious passion," along with information about "a Medical Treatment
and regimen which has never failed of success."

There were also innovative "flash weeklies," racy tabloids with titles such as The Libertine of New York that publicized the locations of brothels and the services offered within, sometimes under the pretense of investigative journalism. The Weekly Rake reported on a prostitute named Maria who "was decked in all the finery the dry goods and jewelry stores of this city can afford. Her residence is Green Street and she has, (we have her word for it) only three gentlemen visitors. She is a very fine looking woman of 30, about the middle size."

The editors and publishers of the flash weeklies also routinely blackmailed prominent men who frequented the dens of iniquity, threatening johns with exposure of the worst sort. (That's a revenue stream the embattled newspaper industry might think about replenishing.) Sometimes the victims fought back in court. A stockbroker dubbed "Big Levy" in the flash press pressed libel charges after being called a "practical amalgamationist" due to his alleged predilection for African-American prostitutes.

Licentious Gotham, a new history by Rutgers law professor Donna Dennis, covers all this and much more in riveting and good-natured detail. It's not just Dennis' descriptions and reproductions of old-fashioned dirty pictures that hold the reader's attention (though both help). Her analysis of legal and social responses to the growth of erotica is as compelling as it is comprehensive. Civic leaders fretted first and foremost that passion-inducing material "posed a special risk of harm because it represented the antithesis of rational, ordered liberty," writes Dennis.

As the makers of contemporary porn (and video games, movies, andmusic) could tell you, such fears are alive and well in contemporary America. In 2005, while pushing legislation that would restrict distribution of video games, then-Sen. Hillary Clinton (D–N.Y.) told USA Today that the controversial Grand Theft Auto franchise encouraged children "to have sex with prostitutes and then murder them." Last year the "extreme porn" king Max Hardcore (a.k.a. Paul Little) was sentenced to almost four years in jail after a Florida jury found him guilty of distributing material a judge called "degrading" and "clearly humiliating." Despite a general decline in violent sexual offenses during the last 30 years—a period in which violent sexual imagery has become almost ubiquitous—guardians of taste, decorum, and public morality continue to insist that porn and erotica lead to crime.

Dennis eschews moralism and underscores ways the prohibitionists and pornographers abetted each other's efforts. In 19th-century America, she explains, municipal authorities initially had few legal weapons to use against smut, so they eventually created the laws and statutes that continue to govern obscenity prosecutions, albeit in an attenuated way. Porn producers back in the day responded by becoming early adopters of new technologies and distribution methods, including lushly produced editions that, like The Secret Habits of the Female Sex, were often coyly titled and advertised in heavily coded language.

"The prohibitions against obscenity gave rise to innovative ways of creating, marketing and distributing pornography," Dennis writes. "In turn, new forms of pornography generated new prohibitions, including unprecedented techniques for regulating, investigating and prosecuting pornographers." Early porn merchants skirted local laws by selling their wares through the U.S. mail, which eventually gave rise to federal prohibitions, "a striking regulatory move" during a period when almost all crimes were prosecuted at the local level. The 1873 Comstock Act, which made it illegal to send obscenity via the postal service, was an early indication of a broad-based shift of power from the states to Washington, D.C.

While most porn cases are still brought by local prosecutors, the federal government sets the overall tone and it's not immediately clear what signal the Obama administration is sending. As a member of the Clinton Justice Department, Attorney General Eric Holder authored a memo which outlined strategies for prosecuting pornographers. However, one of Holder's deputy attorneys general, David Ogden, has defended porn producers in the past. In March, Rob Black and Lizzie Borden of Extreme Associates pleaded guilty to conspiring to distribute obscene materials through the mail; their sentencing is scheduled for July (see "Bush-Era Porn Prosecution Ends in Guilty Plea," page 12). A similar prosecution of Evil Angel Productions' John Stagliano is still pending. If convicted and given the maximum sentence, he could spend decades in prison. (Full disclosure: Stagliano has given money to the Reason Foundation, the nonprofit publisher of this magazine.)

There's an important lesson to be drawn from Licentious Gotham: However repugnant the desires, dreams, and fantasies of consenting adults may seem to some, moral regulators cannot effectively police them. Indeed, prohibition typically creates or exacerbates many more problems than it solves. It's a lesson we are painfully slow to learn as a society, whether the offending substance is alcohol, marijuana, or porn. This book may speed up our education.

Nick Gillespie ([e-mail]) is editor in chief of reason.tv and reason.com. A shorter version of this article appeared in the New York Post.